**I'm glad you have the insight to recognize this is a paranoid fantasy.**

Perhaps here, perhaps now. It certainly not the case in Russia, China, and many other places. Are you of the opinion it could never happen here?

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what if Google was a wholly owned subsidiary of some spook agency? Someone leaves a voicemail on my Google Voice account and it gets transcribed into a text email that finds me wherever I am. If they can transcribe a voicemail that quickly they could certainly do the same to any conversation I route through them. They have my web history, and as I start getting into Wave they'll have those collaborations too. Expect they have some of my shopping and doubtless other stuff; link it all together and a pretty complete picture of me emerges.

**And aformentioned spook agency would care why?**

The current administration makes a lot of hay out of right wing extremists. The spook agencies work for that administration. Do you need me to connect the dots?

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Well Google doesn't have to be wholly owned as there is the Patriot Act and FISA amendment that allow the feds to co-opt just about any communications resource to their end. NSA is building a new storage facility in Utah rumored to have yottabytes (1 yottabyte=1,000,000,000,000,000GB) of drive space where all sorts of electronic utterances could be stored and collated. The thought of my accreted internet wanderings and warblings being stored somewhere and then used for who knows what end down the line give me the willies. Plenty of times and places where my anti-federal, anti-authority, well-armed, somewhat trained perspectives and predilections would have lead to a gulag or worse.

**Yeah, they'll get to you as soon as they roll up the muslim army majors who just happen to be dialoging with AQ affilitated imams about jihad.**

Ah, I see. I'm 'sposed to be comforted by their incompetence and misallocation of resources. Got it.

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I say all this as a reaction to some of the discussion occurring currently and as preface to this CATO piece. Said piece has a lot of links to Electronic Frontier, Wired, and other sources that are will worth exploring. I fret for a country that has yottabytes of data about their citizens stored and I fear the day looms when a politician will put said data to a mass, malign use.

**Please cite the source where the yottabytes will be used to document our collective warblings.**

Google "NSA 64 kilowatt facility in Utah" and all sorts of stuff will come up. The NSA, alas, isn't in the habit of publicly cataloging what they plan to do with all those trillions of gigabytes. I drive twice a day past an array of antennas pointed at DC; I've backpacked past it several times and there are all sorts of dire signs about what would happen if you hopped the fence near the antenna farm. No doubt the facility only intercepts sigint off of nasty people. Then there's the feature story I wrote about an acquaintance with some hard corp military creds. Emailed him a proof; he pulled me aside and assured me some of the terms mentioned in that proof attracted the attention of a supercomputer somewhere or the other and made it clear he didn't want it to happen again. Think there is plenty of evidence out there that much of our communications structure was designed in a manner that allows perusal of gigagobs of data; doesn't take much imagination to wonder what happens from there.

But hey, they are from the government and are here to help. No doubt I should cease my ruminations and find a public teat to suckle on or something.

The current administration makes a lot of hay out of right wing extremists. The spook agencies work for that administration. Do you need me to connect the dots?

**You're going to need a lot more dots to bridge that gap between those two data points. As much as Barry and Rahm would love to do something to quiet the critics, us individuals on the interwebs can say what we will, short of violating an actual law. The CIA, NSA or other such entity can't arrest us. KSM is getting a lovely show trial with full discovery of all sorts of vital national security secrets to be burned, with ACLU types chomping at the bit to spin legalistics webs around the federal prosecution. With the terrorists that butchered 3000 of us on one morning getting the full measure of protection usually afforded to shoplifters, I'm not going to worry about how the new Stasi will be coming for me anytime soon.**

A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by statute; or (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute. (b) Defense It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction. (c) Penalties An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both. (d) Federal jurisdiction There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.

TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1801 (a) “Foreign power” means— (1) a foreign government or any component thereof, whether or not recognized by the United States; (2) a faction of a foreign nation or nations, not substantially composed of United States persons; (3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments; (4) a group engaged in international terrorism or activities in preparation therefor; (5) a foreign-based political organization, not substantially composed of United States persons; or (6) an entity that is directed and controlled by a foreign government or governments. (b) “Agent of a foreign power” means— (1) any person other than a United States person, who— (A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section; (B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person’s presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or (C) engages in international terrorism or activities in preparation therefore; or (2) any person who— (A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States; (B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States; (C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power; (D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or (E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C). (c) “International terrorism” means activities that— (1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State; (2) appear to be intended— (A) to intimidate or coerce a civilian population; (B) to influence the policy of a government by intimidation or coercion; or (C) to affect the conduct of a government by assassination or kidnapping; and (3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum. (d) “Sabotage” means activities that involve a violation of chapter 105 of title 18, or that would involve such a violation if committed against the United States. (e) “Foreign intelligence information” means— (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against— (A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or (C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to— (A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States. (f) “Electronic surveillance” means— (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; (2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18; (3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. (g) “Attorney General” means the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A of title 28. (h) “Minimization procedures”, with respect to electronic surveillance, means— (1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information; (2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance; (3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and (4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person. (i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title , an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section. (j) “United States”, when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands. (k) “Aggrieved person” means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance. (l) “Wire communication” means any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications. (m) “Person” means any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power. (n) “Contents”, when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication. (o) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and any territory or possession of the United States._____________________________________________________________________________________

But hey, they are from the government and are here to help. No doubt I should cease my ruminations and find a public teat to suckle on or something.

**It could happen anywhere, including here. Thankfully, we are far away from any real threat of it happening here anytime soon. Let me know when Glen Beck gets frogmatched off to the gulag.**

It won't start with someone high profile, it'll start with small fry few will get worked up about. Say someone like Calvary Arms, which I think is closing in on 700 days since they were raided and a mess of their stuff was marched off with.

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**You're going to need a lot more dots to bridge that gap between those two data points. As much as Barry and Rahm would love to do something to quiet the critics, us individuals on the interwebs can say what we will, short of violating an actual law. The CIA, NSA or other such entity can't arrest us. KSM is getting a lovely show trial with full discovery of all sorts of vital national security secrets to be burned, with ACLU types chomping at the bit to spin legalistics webs around the federal prosecution. With the terrorists that butchered 3000 of us on one morning getting the full measure of protection usually afforded to shoplifters, I'm not going to worry about how the new Stasi will be coming for me anytime soon.**

I'm not particularly worried about it now, but you are missing the point. The kind of storage capacities they are building now will allow them to store materials that can be misinterpreted and misapplied at some point in the future. If down the line the sweetness and light fascists firmly grasp the reins of power I'd be little surprised if they started combing landfills to see if recyclable materials and a bill with your name on it ended up in the same trash bag and then fine you for that failure to recycle. Though not quite that stark, those sort of nanny state stories are already emerging in the UK. I am already accused by some of being a rabid right winger because of the things I say (I ought to introduce 'em to you, GM, 'cause it'd be fun to watch their heads explode upon learning there are people worse than me); it doesn't take a lot of imagination to worry about today's words ending up in tomorrow's show trials because that exact thing has happened before in times and places where it was much more difficult to produce utterances that are easy to find today.

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Ah, I see. I'm 'sposed to be comforted by their incompetence and misallocation of resources. Got it.

**Well, unless you think Maj. Hasan was missed because the N-VA. JTTF was too busy parsing through your posts on global warming, yes.**

Don't quite have ego enough to embrace that statement, though the folly and willful ignorance that consistently emerges when the history of things military and intelligence related are written does leave me wondering what sort of stupidity and counterproductive behavior will emerge down the line. Think these sorts of concerns also occurred to the framers of the constitutions, which is why they strove to create a limited government. Alas, I'm not sure the terms "limited" and "yottabyte" should appear in the same sentence, much less in the same country.

Anyone have any intel on the recent strange suicide of Michael Scott in Chicago? Apparently he was part of the BO circle and bought RE that would have been valuable had the Olympics chosen Chicago , , ,

The three men convicted in the United Kingdom on Monday of a plot to bomb several transcontinental flights were prosecuted in part using crucial e-mail correspondences intercepted by the U.S. National Security Agency, according to Britain’s Channel 4.

The e-mails, several of which have been reprinted by the BBC and other publications, contained coded messages, according to prosecutors. They were intercepted by the NSA in 2006 but were not included in evidence introduced in a first trial against the three last year.

Wow, and I bet they zeroed in and only intercepted the messages of just these bad guys, and of the mountain of hay they likely sorted through to find these needles they only archived for three year these specific the emails of just these people. . . .

Re the Michael Scott suicide: I saw a report that he was right-handed. With the bullet entry being to the left side of the head, that might be one of those "loose ends" they are looking to wrap up , , , besides the implications of his RE purchases , , ,

No I don't have a better method, though it annoys me to be told someone is dishing up tasty omelets while being assured no eggs were broken in the process. You can't have it both ways by posting all the constraints intelligence agencies are supposedly operating under and then bragging on results that clearly had to involve a lot of sifting before archiving the data for several years.

I can deal with the statement "yes your email is being read, suck it up for security reasons" better than I can deal with "you are paranoid, the laws police and intelligence agencies work under prevent the thing you fear, though check out this intelligence coup that only could have occurred if these first two statements are false, but don't whine about it unless you have a better way to do it."

No I don't have a better method, though it annoys me to be told someone is dishing up tasty omelets while being assured no eggs were broken in the process. You can't have it both ways by posting all the constraints intelligence agencies are supposedly operating under and then bragging on results that clearly had to involve a lot of sifting before archiving the data for several years.

**What are the 4th amendment protections enjoyed by British nationals emailing Pakistanis?**

Without seeing all the reports, and especially seeing all the crime scene photos, it's impossible to say that it's not a suicide unless the GSW was positioned in such a manner as to make it impossible that it was self inflicted. A contact GSW looks the same, no matter if it was self inflicted or done by someone else. Now if it wasn't a contact/close range GSW, then you have something....

No I don't have a better method, though it annoys me to be told someone is dishing up tasty omelets while being assured no eggs were broken in the process. You can't have it both ways by posting all the constraints intelligence agencies are supposedly operating under and then bragging on results that clearly had to involve a lot of sifting before archiving the data for several years.

**What are the 4th amendment protections enjoyed by British nationals emailing Pakistanis?**

If you only make omelets with eggs that have double yolks you have to sort through and examine a lot of single yolk eggs to get there. The NSA doesn't disclose its methodology, but a lot of the pipes that route data flow through the US, are pirated through the US, and or contains traffic originating from US citizens. I can't think of a way to sort through all those numerous 1s and 0s seeking double yolks without peering through single yolk data, nor can I imagine that, once an association is made, that potentially related material isn't archived in case it proves of value later. Claiming otherwise is tantamount to believing you can run a vacuum cleaner on the beach and only pick up targeted grains of sand.

Nah, I think they should be forced to wrestle members of Code Pink in a vat full of lime jello, sardines, buttermilk, and tomato paste. Work for you?

And are you ceding that the NSA peruses American originating sigint? Or are we talking about disbanding the NSA for things they haven't done?

I've got an uncle (second cousin, actually) who was a Wisco politician who palled around w/ Proxmire and at one point was considering a run from governor. He use to argue with me about my Libertarian ways, claiming that you needed to work within a party structure to achieve your ends, doing a lot of compromising along the way. I replied that there was a long, honorable history of citizens fighting losing battles in defense of unadulterated liberty and, in losing, making sure those who play fast and loose with the nation's founding principles understand their shenanigans are understood and being monitored.

I suffer no illusion that my mewlings will cause the NSA to change its course, and here and now the benefit cost analysis perhaps favors the status quo. It's my hope, however, that defining the issues to small audiences in my inimitable fashion will help to ensure I'm not the only one monitoring these concerns.

Steeling myself for the next stark question. . . .

Edited to add: Off to KY in the a.m. where I'm second in command and cook for an expedition where the leader just came down w/ H1N1. Have a bunch of balls in the air most of the week so I'm not sure when I'll be back to the fray.

Nah, I think they should be forced to wrestle members of Code Pink in a vat full of lime jello, sardines, buttermilk, and tomato paste. Work for you?

And are you ceding that the NSA peruses American originating sigint? Or are we talking about disbanding the NSA for things they haven't done?

**Given that neither one of us get to wander through the bowels of Ft. Meade and that the intertubes don't have clearly demarcated borders, it's not possible to know what has happened and hasn't. Yes? Although it's my understanding is that friendly foreign intel agencies do sift through US domestic sigint and tip off US law enforcement on the federal level when they spot something worth investigating. What are you going to do to stop GCHQ from reading your global warming posts?**

I've got an uncle (second cousin, actually) who was a Wisco politician who palled around w/ Proxmire and at one point was considering a run from governor. He use to argue with me about my Libertarian ways, claiming that you needed to work within a party structure to achieve your ends, doing a lot of compromising along the way. I replied that there was a long, honorable history of citizens fighting losing battles in defense of unadulterated liberty and, in losing, making sure those who play fast and loose with the nation's founding principles understand their shenanigans are understood and being monitored.

**Ah yes, the Libertarians, changing the world, one losing candidate at a time.**

I suffer no illusion that my mewlings will cause the NSA to change its course, and here and now the benefit cost analysis perhaps favors the status quo. It's my hope, however, that defining the issues to small audiences in my inimitable fashion will help to ensure I'm not the only one monitoring these concerns.

Steeling myself for the next stark question. . . .

Edited to add: Off to KY in the a.m. where I'm second in command and cook for an expedition where the leader just came down w/ H1N1. Have a bunch of balls in the air most of the week so I'm not sure when I'll be back to the fray.

Be careful when in a part of the country where "Deliverance" is in the romantic-comedy sections of the video stores.

They are reticent on how Zazi was identified but admit it was through an “intercepted communication."

After Vinas was detained, a number of arrests followed in Belgium in December and in April this year Greater Manchester Police arrested 12 Pakistani students after GCHQ intercepted emails about girls and cars that were allegedly code for a planned attack.

Washington, D.C. – Senators John Ensign (NV) and Lisa Murkowski (AK) introduced legislation today to split the Ninth Circuit Court of Appeals, the largest court in the country, because it is overburdened by an unmanageable caseload. Under this bill, Nevada, along with Alaska, Arizona, Idaho, Oregon, Montana and Washington, would be part of a new Twelfth Circuit.

“The sheer size of the Ninth Circuit makes its caseload simply unmanageable,” said Senator Ted Stevens, an original co-sponsor of the legislation. “This inevitably results in delays processing cases, and it also prevents the Court from dealing with unique problems in Alaska, Hawaii, and other small states. This legislation will remedy the Ninth Circuit’s limitations by creating two smaller, more efficient Courts. Separate courts will serve the people of each region better and help maintain consistency in caselaw.”

We'll see if it works this time. Something that is long overdue since the rapidly growing "rural" states are getting really tired of this Idealogical, rather than legal court.

The Federal Trade Commission illegally published the private financial data of William H. Isely, the 84-year-old target of a recently dismissed FTC complaint, on the agency's website (www.ftc.gov) sometime in the past few days. Isely submitted the confidential information to the FTC as part of an application to recover over $130,000 in attorney fees, expenses, and lost business arising from the agency's malicious prosecution.

FTC employees posted Isely's entire application for attorney fees without redacting more than eighty pages of confidential information detailing the finances of Isely and his wife, who was not a defendant in the case. The FTC published the Iselys' social security numbers, bank account numbers, credit card numbers, and federal income tax returns for the past five years, among other items.* FTC rules required the Iselys to provide this information as a precondition to receive an award of attorney fees due to the Commission's wrongdoing; the FTC will not compensate wrongfully-prosecuted defendants if their net worth exceeds a certain value.

The illegal publication was discovered late Wednesday afternoon. The FTC and Isely's attorney were notified about 4:45 p.m. yesterday, but the document was not removed from www.ftc.gov until approximately 9:45 a.m. this morning - seventeen hours later. It's unknown exactly how long the document was publicly available. The fee application was dated December 1 and marked-as-received by the FTC the next day. It's likely the document had been on the website since at least Monday, December 7.

FTC Secretary Donald S. Clark is responsible for posting the fee application to the agency's website. In a telephone interview, Clark blamed Isely's attorney, Matthew Van Horn, for failing to label his fee application as "confidential," and not requesting permission to file separate public and non-public versions. Clark declined to comment on whether the FTC broke any laws.

However, 5 U.S.C. § 552a expressly prohibits a government agency from disclosing records containing an individual's financial transactions, name, or "identifying number," among other items. Government employees who "willfully" disclose confidential records are subject to misdemeanor charges and a maximum fine of five thousand dollars.

And while FTC rules may specify a procedure for separately filing non-public documents, those rules do not govern whether and how Clark's office publishes documents at www.ftc.gov. Here, the fee application was apparently filed by Van Horn in paper form and then converted by Clark's office into an electronic PDF that was posted to the website. Although a quick review of the fee application revealed the existence of clearly private information, nobody in Clark's office either caught this or thought it might be a problem.

Not surprisingly, the FTC does not accept such excuses at face value when regulating private businesses. For example, in February 2009, CVS Caremark settled FTC charges that the company "failed to take reasonable and appropriate security measures to protect the sensitive financial and medical information of its customers and employees." The FTC alleged that CVS pharmacies "discarded materials containing personal information...in unsecured, publicly-accessible trash dumpsters on numerous occasions." The company was cited for both failing to adopt adequate privacy policies and failing to train employees on how to handle sensitive information. (In addition to the FTC settlement, CVS also paid a $2.25 million fine to the Department of Health and Human Services.)

As the CVS case demonstrates, the FTC views itself as the nation's primary defender of "consumer privacy." Just this past Monday, FTC Chairman Jon Leibowitz convened the first in a series of "exploring privacy" roundtables. Leibowitz has previously said, in regard to businesses that collect consumer information for advertising purposes, "If we see problems...the commission won't hesitate to bring cases, or even break thumbs."

Unlike CVS or an online advertiser, however, the FTC didn't mishandle data obtained from customers; it exposed the personal finances of a man who recently defeated the FTC before its own administrative law judge. As reported on Mises.org last month, the FTC falsely accused Isely, of running a website, www.agaricus.net, that supposedly contained false and misleading statements related to the health benefits of certain dietary supplements. The case is part of a larger FTC campaign to censor the Internet by outlawing personal testimonials and other statements regarding the medicinal use of natural products like herbs and mushrooms.

Isely was not the owner or operator of the website in question, but FTC prosecutor Barbara Bolton and her investigator, Michael Liggins, deliberately ignored evidence that another individual, a non-U.S. resident outside the FTC's jurisdiction, was the actual owner.

D. Michael Chappell, the FTC's chief administrative law judge, filed an initial decision on September 16 dismissing the complaint against Isely. On Monday, Secretary Clark filed notice that there would be no appeal of Chappell's decision, which is now the FTC's final decision.

In his application to recover attorney fees and expenses, Isely said he "was taken advantage of" by FTC staff, who "used the power and resources of the Federal Trade Commission in attempt to coerce [him] to admitting liability." He described how his "business was destroyed" by the FTC's false charges. Isely, whose reported net worth is less than fifty thousand dollars, seeks $89,330.19 to pay his legal bill to Van Horn, $6,000.06 for travel and related expenses, and $36,902.11 for "loss of business income" - a total of $132,232.36.

If approved by Judge Chappell, taxpayers would be on the hook for the full amount; neither Barbara Bolton, the FTC attorney who prosecuted the case, nor any of her superiors at the Commission can be held personally liable for their misconduct. Additionally, it is unknown how much Bolton and her staff spent to prosecute Isely; the FTC has illegally refused to answer a Freedom of Information Act request filed more than two months ago seeking disclosure of the agency's expenditures in this case.

* Isely and his wife disclosed their home address; telephone numbers; social security numbers; the names, locations, and numbers of their safe deposit boxes; cash-on-hand; the names, locations, and full numbers of their personal and business bank accounts; information regarding a life insurance policy; a list of all personal property; the identity, registration, and assessed value of their personal vehicles; the location and assessed value of real property solely in Mrs. Isely's name; the names, full account numbers, and current balances of several credit cards; a list of any taxes owed; a list of federal tax returns, and expected refunds, for the past three years; a list of all asset transfers completed within the past three years; and complete bank account and credit card statements. Isely also provided his complete federal tax returns for the past five years in support of his request for reimbursement of lost business income.

I work at the Savannah River Site (SRS) in South Carolina. I’ve been following the Climategate scandal since its inception. The first time many of my coworkers had heard of the situation was when I asked them about it.

Well, well, well.Look what was waiting in every single email Inbox on Monday morning:______________________________________________

“December 14, 2009

DOE Litigation Hold Notice

DOE-SR has received a “Litigation Hold Notice” from the U.S. Department of Energy (DOE) General Council and the DOE Office of Inspector General regarding the Climate Research Unit at the University of East Anglia in England. Accordingly, they are requesting that SRNS, SRR and other Site contractors locate and preserve all documents, records, data, correspondence, notes, and other materials, whether official or unofficial, original or duplicative, drafts or final versions, partial or complete that may relate to the global warming, including, but not limited to, the contract files, any related correspondence files, and any records, including emails or other correspondence, notes, documents, or other material related to this contract, regardless of its location or medium on which it is stored. In other words, please preserve any and all documents relevant to “global warming, the Climate Research Unit at he University of East Anglia In England, and/or climate change science.”

As a reminder, this Litigation Hold preservation obligation supersedes any existing statutory or regulatory document retention period or destructive schedule. The determination of what information may be potentially relevant is based upon content and substance and generally does not depend on the type of medium on which the information exists. The information requested may exist in various forms, including paper records, hand-written notes, telephone log entries, email, and other electronic communication (including voicemail), word processing documents (including drafts, spreadsheets, databases, and calendars), telephone logs, electronic address books, PDAs (like Palm Pilots and Blackberries), internet usage files, systems manuals, and network access information in their original format. All ESI should be preserved in its originally-created, or “native” format, along with related metadata. Relevant backup tapes and all indexes for those tapes should also be preserved. Further, information that is reasonably accessible must nonetheless be preserved, because such sources will, at the very least, need to be identified and, under compelling circumstances, may need to be produced.

If you have any doubts as to whether specific information is responsive, err on the side of preserving that information.

Any employee who has information covered by this Litigation Hold is requested to contact Madeline Screven, Paralegal, SRNS Office of General Council, 5-4634, for additional instructions.

Last week, the Supreme Court heard two cases challenging the scope of so-called “honest services” fraud, a 28-word provision tacked onto the generic federal mail-and-wire fraud statute that makes it illegal to “deprive another of the intangible right of honest services.”

If you’re asking what this statute means, you’re in august company: Justice Antonin Scalia asked the very same question during oral argument in Black v. U.S. (see pg. 45 of the transcript [PDF]). All told, eight of the nine justices expressed skepticism about the “honest services” law, focusing on the vagueness that prosecutors have exploited but defendants and civil libertarians have loathed.

Most pointedly, perhaps, was Justice Stephen Breyer’s observation that almost any professional could inadvertently violate this statute. “[T]here are 150 million workers in the United States. I think possibly 140 [million] of them would flunk your test,” he told Deputy Solicitor General Michael R. Dreeben, who was attempting to posit arguable limiting principles.

Breyer’s observation goes to the heart of the phenomenon about which I’ve written in my book, Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009). Because of the vague terminology increasingly used in the ever-expanding federal criminal code, combined with the erosion of intent as a requirement for conduct to be considered prosecutable, the average citizen can easily commit several felonies in any given day. (Interviewers have jostled me for what they deemed my wild overstatement, while I’ve tried to assure them that their own daily conduct probably produces three arguable felonies. Now I have one justice—and perhaps several more—on my side.)

“Honest services” fraud is an instructive example of this trend, but the federal law books are cluttered with countless others. Creative interpretations of the Computer Fraud and Abuse Act, obstruction of justice statutes, and controversial Patriot Act provisions—to name a few—have turned honest citizens into federal defendants and even convicted felons.

What about “due process of law” guarantees provided under the Fifth Amendment and its ancillary “void for vagueness” doctrine, which protects citizens from being prosecuted with unclear laws that they cannot be expected to understand? This salutary doctrine was famously invoked during the Civil Rights Era, when state convictions were struck down because malleable statutes were selectively enforced against protesters. The Supreme Court recognized, in one case, that prohibiting protests “near” a courthouse gives government officials too much latitude in determining what is, and what is not, legal. Many such state convictions were voided by federal courts.

But in the aftermath of the modern-day explosion of federal statutes and regulations covering almost every area of American life, these doctrines have not been applied with equal rigor. In a system that operates like this, more and more innocent conduct gets swept into the category of arguable crime—not by clear legislation, not by careful and honest court examination, but by assumption and acquiescence.

This dangerous trend is exacerbated by the “win at all costs” mentality of the Justice Department. Colleagues are turned into stool pigeons as prosecutors offer deals for testimony that often bears little resemblance to the truth. (As my colleague Alan Dershowitz colorfully but all-too-accurately puts it, “prosecutors can pressure witnesses not only to sing, but also to compose.”)

Faced with the prospect of a long prison sentence, enormous costs of defense counsel, and frequent threats to indict family members who are thus held hostage, defendants often choose, to parody an old cigarette commercial, to switch rather than fight.

That’s a big reason why, in 2006, 96% of all federal convictions were a result of guilty or no-contest pleas, according to Justice Department statistics. When these cases end in plea agreements, scant scrutiny is applied to the sometimes questionable prosecutorial tactics—tactics, incidentally, that are rarely understood, much less questioned, by a largely pliant news media that feeds on sensational prosecution claims.

It’s important to keep in mind, too, that this problem is not the creation of any one political party. It’s a truly bipartisan beast, expanding rapidly since the mid-1980s. That’s when I, a criminal defense and civil liberties trial lawyer since 1967, noticed that more and more of my clients in federal criminal cases were being prosecuted for actions that neither I nor they instinctively viewed as criminal. In a few instances, their conduct was arguably borderline or otherwise ethically dubious, but it lacked the clear contours that would violate statutes and regulations with sufficient clarity to qualify for criminal prosecution.

To my surprise (and chagrin), this trend has only increased with each successive changing of the Washington political guard. From Reagan to Obama, Congress has continued to pass indecipherable legislation, and federal prosecutors have continued to twist statutes in order to criminalize a broad array of conduct—including, quite often, conduct that is assuredly not in violation of state law but which suddenly becomes federal fraud.

The bipartisan nature of this problem is at once disheartening and encouraging. Disheartening, in a sense, because it cannot be remedied by voting one party out of power. It seems to be rooted in the culture at Main Justice, a culture that persists from one attorney general to the next.

In another sense, though, the nonpartisan nature holds promise. Recognition of this problem has brought together seemingly disparate groups to collectively seek change. Adam Liptak, Supreme Court reporter for The New York Times, picked up on this in his November 23 column, “Right and Left Join Forces on Criminal Justice.”

In the next several months, the Supreme Court will decide at least a half-dozen cases about the rights of people accused of crimes involving drugs, sex and corruption. Civil liberties groups and associations of defense lawyers have lined up on the side of the accused.

But so have conservative, libertarian and business groups. Their briefs and public statements are signs of an emerging consensus on the right that the criminal justice system is an aspect of big government that must be contained.

Liptak noted, later in the column, that an official from the conservative Heritage Foundation offered him a copy of Three Felonies a Day. (In that column, Liptak referred to me as a “left-wing civil liberties lawyer,” and that was somewhat accurate, although I see myself as a liberal with strong libertarian leanings. My co-founding The Foundation for Individual Rights in Education (FIRE) demonstrates, for example, my near-absolutist support for free speech regardless of politics or point-of-view.)

The “honest services” hearings and the emerging consensus on reforming these criminal justice issues were also highlighted by Tony Mauro of the National Law Journal. In his December 7th column, Mauro pointed out that former Attorney General Edwin Meese III—whom I criticized vehemently when he headed the Reagan Justice Department—welcomed me at a recent speaking event. We now see eye-to-eye on “overcriminalization” of the law, which covers both the expanded reach of federal criminal law and the vagueness of the statutes.

Over the coming week, I will explore the extent of the threat to liberty represented by vague federal laws and the reasons behind this nonpartisan unification against them.

Keeping the Nation Safe, or Making Citizens Vulnerable? The Dangers of Vagueness in Anti-terrorism LawsHarvey Silverglate • December 15, 2009 8:32 am

Second installment of a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.

Sami Omar al-Hussayen was a doctoral candidate at the University of Idaho when he was arrested in February 2003. Federal prosecutors alleged that al-Hussayen, a Saudi citizen studying computer science in the United States, provided “material support” and rendered “expert advice or assistance” to terrorists. News reports, on the word of anonymous “federal criminal justice” sources, linked him to Osama bin Laden.

What was his crime? Al-Hussayen used his computer skills to run a number of websites for a Muslim charity dedicated to traditional religious teaching. But if a web-surfer burrowed into links from al-Hussayen’s site, he or she would eventually come across links containing violent anti-American messages. This, prosecutors charged (PDF), was how al-Hussayen aided global terrorism.

District Judge Edward J. Lodge, for one, played the case right down the middle. In his jury instructions, Lodge explained to twelve stalwart Idahoans that the First Amendment protects advocacy, even advocacy to break the law, “unless the speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Brandenburg v. Ohio, 395 U.S. 444, 1969) Of course, it was doubtful that al-Hussayen was even advocating lawlessness, much less violence, but for the sake of argument, let’s assume that there was such a subtext to his website maintenance. Even then, the prosecution was highly dubious.

With Judge Lodge’s clear line separating lawful political speech from unlawful incitement to imminent violence, the jury took little time in acquitting the grad student of the terrorism-related charges. Liberty, which seemed to matter less and less at Main Justice in Washington, remained alive and well in Idaho. (This was due not only to a law-abiding judge presiding over the trial, but also to the fact that the defendant was able to hire and pay competent defense counsel.)

Nonetheless, this case, reportedly the first prosecution brought under the USA Patriot Act’s expanded material support provision, did little to clarify the “expert advice or assistance” aspect of the federal terrorism laws. There are, in fact, three separate federal statutes that criminalize such material support, and Georgetown Law Professor David Cole provides an interesting analysis of these overlapping provisions, here. For present purposes, material support will refer to 18 U.S.C. 2339B.

Yet the mere fact that there are three separate provisions for essentially the same violation—and all are characterized by vague and dangerously subjective wording—illustrates the general opacity of the federal criminal code. (And, rest assured, incitement to violence could likely be squeezed into yet another statute by a creative federal prosecutor). With similarly vague statutes criminalizing a wide array of seemingly benign activity, the average citizen, even without touching the apparently volatile arena of Muslim charities, can commit several arguable felonies in the course of a day. Thus, the thesis and title of my book, Three Felonies a Day: How the Feds Target the Innocent. (I provided an introduction to the topic on Monday.)

To be sure, there are countless federal crimes that an average citizen can inadvertently violate. But I’d like to focus today on the vague laws governing terrorism and terrorist organizations. These laws, and those prosecuted under them, provide a timely window into how loosely-worded statutes enable the government to prosecute virtually anyone.

Consider, first, the semantic power of “terrorism.”

The Animal Enterprise Protection Act, passed by Congress in 1992, outlawed the “physical disruption” of an animal farm or testing facility. But with animal-rights activists continually ramping up their protests, medical facilities and some researchers looked to toughen criminal sanctions. In November 2006, Congress responded with the Animal Enterprise Terrorism Act, which expanded the scope of criminal sanctions for any activist who “intentionally damages or causes the loss of any real or personal property…used by an animal enterprise.”

How does one define “real or personal property?” Is it limited to monetary losses, or can this include the loss of future profits? The statutory language is unclear, and case law indicates that loss of profits and business goodwill can be considered property damage (See, e.g., Radiation Sterilizers v. United States, E.D. Wash., 1994).

It’s an important distinction for animal-rights activists; after all, threatening future profit is arguably the point of lawful protest (expose alleged wrongdoing and, in turn, encourage a boycott by others). Nonetheless, the law threatens to impede such political expression, not only through actual prosecution, but also through the “chilling effect” of those who severely restrain themselves in order to avoid a possible federal criminal indictment—because they don’t know their legal obligations until it’s too late.

A similar legal ambiguity led to the court challenge of the aforesaid “material support” language. In a case that will be argued before the Supreme Court this coming term (Holder v. Humanitarian Law Project), six groups and two individuals are seeking clarity on whether they are permitted to assist in the nonviolent, legal activities of groups classified by the U.S. government as terrorist.

The Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam are considered terrorist organizations by the U.S. government, although plaintiffs insist that both groups engage in a broad range of lawful activity. Due to the vague terminology in Patriot Act provisions (“service,” “training,” or “expert advice or assistance,” to name a few), plaintiffs claim that even innocuous conduct such as “teach[ing] such an organization human rights advocacy or English” could be considered material support. With indictments like al-Hussayen’s showing the elasticity of “expert advice” in the government’s lexicon, there’s little wonder that these groups are seeking guidance.

The intensity of the friend-of-the-court (amicus) briefs is an indication, perhaps, of the far-reaching fear instilled by such statutory language. Wrote the ACLU (PDF):

Amici, like plaintiffs, are left hopelessly guessing – at the risk of grave penalty – whether their advocacy for peace or human rights, their engagement in or facilitation of peace-making dialogue, or the expressive components of their humanitarian aid work crosses the line from constitutionally protected to criminally proscribed.

The bi-partisan nature of the problem—demonstrated by the fact that what is now the “Holder” case began as Humanitarian Law Project v. Reno and then was re-named through every administration to the present day—explains the need for a non-partisan response. Starting with Clinton Attorney General Janet Reno, this case has been litigated through the Ashcroft/Gonzales/Mukasey years of the Bush administration, and it continues with current AG Eric Holder. Plus ça change, as the French say, plus c’est la même chose.

When these lines are left vague, the feds are given strong tools to target extremists. But they’re also free to target any other victim of their choosing, which they seem to do with disturbing regularity. And while the current political climate has put the issue of laws related to terrorism in the spotlight, similarly vague statutes exist throughout the federal criminal code, exposing all of civil society. It’s time to recognize that the bell tolls for us all.

Third installment in a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.

“As a result of a burgeoning number of fraud investigations and prosecutions, I have become convinced that a concerted interagency effort is needed. We want to bring this additional firepower to bear on behalf of investors who might otherwise lose their confidence in the integrity of these markets.”

The Financial Fraud Enforcement Task Force, an interagency effort to investigate and prosecute those responsible for the current economic crisis, was established via executive order on November 17. But the above announcement was made twenty years prior. On January 31, 1989, then-Attorney General Dick Thornburgh touted the creation of a coordinated task force to bring to heel those responsible for the Wall Street scandals du jour.

Indeed, the present response to Wall Street failures seems straight out of a time-tested Washington playbook: Ratchet up enforcement, throw the miscreants in prison, and—voila—the public’s confidence in their markets and in their government is restored.

Arrest rates for “white collar” fraud have surged in the wake of recent well-publicized financial scandals, according to data generated (PDF) from the FBI’s Uniform Crime Reports. Over a two-year period after the savings-and-loan scandal and the creation of the task force described above (1990–1992), the number of fraud arrests increased 53%; over the same period following the dot-com bust (2000–2002), arrests jumped 26%. Now, with regulatory agencies expanding their probes of alleged insider-trading violations and the Justice Department promising more convictions, a raft of indictments appears inevitable. But do these enforcement efforts reflect true criminal violations? Putting aside the long-term efficacy of such periodic orgies of prosecution, there remains the nagging question of whether the defendants are guilty of any crime.

One’s unease lies not in the seeming futility of enforcement per se, but in the very nature of the laws that regulate financial fraud. For one thing, the sheer volume of regulatory codes makes adherence to legal standards a high hurdle. When Congress was considering the Fraud Enforcement and Recovery Act earlier this year, the National Association of Criminal Defense Lawyers and the Federalist Society—organizations on opposite ends of the ideological spectrum but joined at the hip in battling unfair and excessive federal prosecutions—authored a joint letter (PDF) to the Senate Judiciary Committee, pointing out that virtually all criminal provisions then under consideration were already encompassed within the existing federal criminal code. Congress ignored this nonpartisan and eminently sensible plea, passed the legislation, and added to the Justice Department’s armamentarium of overlapping and vague criminal statutes.

More pernicious than the volume of federal laws, however, is their imprecise wording. Prosecutors are given too much latitude in pursuing perceived wrongdoers whose conduct isn’t explicitly proscribed by statutory language. In a society of laws, fair notice as to what conduct might land a citizen in prison is a vital component of due process.

This should not be confused with a plea for de-regulation, which is largely a political and not a legal debate. Nor is it a plea for leniency for those who knowingly violate clear rules, even if those rules are unwise. But providing average citizens with clarity of their legal obligations is a vital civil liberties matter having nothing to do with whether one believes in more regulation or less. Timothy Lynch, director of the Cato Institute’s Project on Criminal Justice, spells out the need for specifically defined legal boundaries in his timely treatise on modern criminal law, In the Name of Justice (to which I contributed a chapter):

There is precious little difference between a secret law and a published regulation that cannot be understood. History is filled with examples of oppressive governments that persecuted unpopular groups and innocent individuals by keeping the law’s requirements from the people.

Galleon Group hedge fund founder Raj Rajaratnam, indicted (PDF) yesterday on 11 counts of securities fraud and conspiracy, would likely fit into this “unpopular” category, especially as his unflattering, hand-cuffed image from an October 16 early-morning “perp walk” continues to grace broadsheets and blogs. Rajaratnam is accused of having foraged around for—and obtained—purportedly non-public information from corporate insiders. But serious questions exist as to the line between legitimate research and illegal trading, as well as the extent to which insider trading laws even cover such outsiders who seek inside information. (Unlike Rajaratnam, others involved in the case might be insiders, and their legal obligations would be considerably clearer.)

The law criminalizing insider trading, enacted with the Securities and Exchange Act of 1934, prohibits “any person, directly or indirectly,” to “use or employ, in connection with the purchase or sale of any security…any manipulative or deceptive device.” Lawmakers assumed the SEC, which the Act created, would issue regulations to flesh out the vague language and effectuate the statute’s intent. But the SEC’s regulations tend to mimic, rather than clarify, the statute’s oracular wording, and neither the SEC nor Congress has been particularly eager to spell out precisely the nature of “securities fraud” or “insider trading.”

In the 1980s, both Congress and the SEC had an opportunity to provide clarity to securities fraud law. The Insider Trading Sanctions Act of 1984 (“ITSA”) substantially increased the penalties for insider trading. The Insider Trading and Securities Fraud Enforcement Act of 1988 (“ITSFEA”) further upped the ante by providing sanctions against those who “recklessly…failed to take appropriate steps to prevent” violations by others. Remarkably, despite near-unanimous support in both chambers of Congress, neither statute did anything to define precisely what insider trading was and what kinds of “outsiders” were covered.

During the ITSFEA hearings, Chairman John Dingell of the House Committee on Energy and Commerce claimed that any definition of insider trading would provide criminals with a “roadmap for fraud.” (It appeared not to occur to him that legal clarity is actually meant to provide a roadmap for lawful conduct.) Dingell explained that his committee “did not believe that the lack of consensus over the proper delineation of an insider trading definition should impede progress on the needed enforcement reforms encompassed within this legislation.”

It is reasonable to ask the question—especially in light of the early morning arrests, perp walks, sensational trials, and gargantuan prison sentences—whether the current system for dealing with “insider trading” by corporate outsiders who pursue as much information as their research skills and personal contacts allow comports with basic notions of due process of law.

Similar due process questions arose in the case of two former Bear Stearns hedge fund managers. Prosecutors indicted (PDF) Ralph Cioffi and Matthew Tannin on securities fraud charges for, in effect, presenting an optimistic picture to investors while aware of the possibility of collapse. When Cioffi and Tannin were faced with questions as the subprime mortgage market—in which their funds were heavily invested—looked ominously shaky, they doubtless agreed with the prevailing wisdom: Sure, a total collapse could happen, but the markets could instead stabilize and suddenly present managers with a huge buying opportunity. The situation, after all, was unprecedented in modern times.

Were a fund manager to respond to questions by publicly indulging his pessimistic side— “I think our liquidity has dried up and we may be on the verge of collapse”—he surely would have caused precisely that which he was hoping to avoid: a fatal “run on the bank.” Such a statement could rightly be seen as professional malpractice, subjecting the manager to endless civil litigation by disgruntled investors who doubtless could demonstrate that, at the time, an optimistic outcome was still a distinct possibility and that the manager’s predictions of doom were a reckless self-fulfilling prophecy.

The case was yet another example of the Justice Department targeting “professionals who have engaged in seemingly routine requirements of their job,” I wrote in the Wall Street Journal when the criminal investigation commenced in April 2008. Fortunately, jurors recognized the Catch-22 in which the Bear managers found themselves and acquitted Cioffi and Tannin on November 10.

In light of the legacy of the federal government responding to market downturns with task forces and ramped up prosecutions and perp walks, former Attorney General Thornburgh’s testimony (PDF) at a July 2009 Congressional hearing on the phenomenon of “overcriminalization” was a gratifying departure from remarks past. Said Thornburgh:

Make no mistake, when individuals commit crimes they should be held responsible and punished accordingly. The line has become blurred, however, on what conduct constitutes a crime, particularly in corporate criminal cases, and this line needs to be redrawn and reclarified.

How the “Independent” Fourth Estate Has Failed in its Critical DutyHarvey Silverglate • December 17, 2009 2:56 am

Fourth installment in a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.

In a discussion on WAMU Radio yesterday, host Kojo Nnamdi noted that vagueness in the federal criminal law has recently made “strange bedfellows” of the political left and right. This same “emerging consensus” was also the subject of an insightful November 23 article by Adam Liptak, The New York Times’ Supreme Court reporter.

What has occasioned this coming together? As I mentioned here on Monday, individuals and organizations of all political stripes are realizing the danger to all when prosecutors are empowered with exceedingly broad and—worse—hard-to-define federal laws. A diverse coalition of groups—including the Heritage Foundation, the Federalist Society, the Cato Institute, the National Association of Criminal Defense Lawyers, and the ACLU, among others—have been sounding a clarion call against this species of executive expansion. They have pointed out that, from webmasters to fund managers, no segment of civil society is safe.

But this phenomenon is not new. As I document in Three Felonies a Day, the proliferation of vague laws—and prosecutions under them—began in the mid-1980s. Why has widespread recognition, especially from the American public, taken so long?

For one thing, the Department of Justice has a very effective public relations machine. With every major indictment, there is a press release and, not infrequently, a press conference that major national media typically attend with bated breath. Flanked by FBI, IRS, DEA, SEC, and members of the other myriad supporting agencies, prosecutors feed reporters the government’s side of the case, often a matter of hours after a hapless defendant has been rousted out of bed and paraded in the infamous “perp walk” (much to the delight of press photographers who have been tipped off in advance). At the end of this prejudicial circus-like performance, prosecutors often refuse to answer media questions on the ironic ground that they are bound by the federal court’s rules against pre-trial publicity and, in any event, they do not want to cause the public (especially potential jurors) to prejudge the case!

But the press corps itself is ultimately responsible for the one-sided coverage of what I call “three-felonies-a-day” cases (a reference to my new book, Three Felonies a Day: How the Feds Target the Innocent). The fact is that there is an unseemly relationship between the Department of Justice and much of the news media. While in some areas the press and the DOJ have developed an appropriately adversarial, or at least skeptical relationship, by and large the DOJ plays the press corps like a fiddle.

Consider the Houston Chronicle’s slanted coverage of the arrest, indictment, and trial of former Enron President Jeffrey Skilling, convicted in May 2006 on charges of conspiracy, securities fraud and depriving the now-defunct Houston-based energy company of his “honest services.” Vitriol for Skilling was not limited to the Chronicle’s opinion pages; news articles, sports stories, and columnists vilified Skilling well before his day in court. Despite affirming his conviction, the Fifth Circuit Court of Appeals ruled that the media coverage created a community prejudice against Skilling. The three-judge panel wrote (PDF) that the Chronicle published “nearly one hundred…personal interest stories in which sympathetic individuals expressed feelings of anger and betrayal toward Enron,” and that even “the Chronicle’s ‘Pethouse Pet of the Week’ section mentioned that a pet had ‘enjoyed watching those Enron jerks being led away in handcuffs.’” (Emphasis in original) In Houston, the so-called Fourth Estate played the role of prosecutorial lapdog.

The Supreme Court decided on October 13 to review the Skilling case as part of its trio of honest services cases this term, and one of the issues on appeal is the extent to which jury prejudice affected the verdict. But, if the previous hearing on honest services is any indication, the justices will use the Skilling case to look at the broader constitutional due process question surrounding the infamously vague 28-word fraud provision. Oral argument is set for March 1.

Another public figure, disparaged in the public eye even before he was indicted (much less convicted) will be intently watching the high court’s decisions in all three honest services cases. The prosecutor’s press machine has been so effective that even mentioning his name causes some to chuckle with derision. But the case of former Illinois Governor Rod Blagojevich deserves a closer look.

Illinois U.S. Attorney Patrick Fitzgerald framed the case, from the start, as an altruistic Department of Justice mission to clean up state and local politics. At a December 9, 2009 press conference, held shortly after Blagojevich’s early-morning arrest on a variety of political corruption charges, Fitzgerald announced his most sensational allegation: The governor deprived Illinois’ electorate of his “honest services” when he sought to sell to the highest-bidder the Senate seat vacated by Barack Obama. The headlines were, predictably, nationwide, in large type above-the-fold (or the on-line equivalent).

This discovery from the wiretap and bug planted by Fitzgerald’s agents in the governor’s office and home was deemed so threatening to the public weal that the prosecutors, rather than give the plot time to play itself out and result in an outright sale-and-purchase of the Senate seat, pulled the plug and arrested Blagojevich before any deal was consummated—or so the nation was told. At the press conference, Fitzgerald informed a rapt audience of newsmen that he had to act precipitously to prevent the governor from carrying through this “most appalling conduct” that was the pinnacle of the governor’s “political corruption crime spree.”

So the prosecution is for a “conspiracy,” or plan, to sell the Senate seat, rather than for an accomplished act. Without having to show that Blagojevich actually sold the Senate seat, and with the notoriously vague federal conspiracy law, securing a conviction is much easier. In a sense, no real crime is required. Yet neither the media nor the public questioned Fitzgerald’s motives for failing to wait until the Obama seat was actually sold. (Had such a sale taken place, of course, the Senate would surely not have seated the governor’s nominee. Hence, there was no good reason for Fitzgerald to fail to wait for the completed crime—except, as I suggest, that no such sale was in fact going to take place.)

Blagojevich has some quite different perspectives on his pre-arrest political machinations, which he sets out in a remarkable, even if unbalanced and in some places downright silly, memoir published after his indictment, entitled The Governor. The former governor claims that his motive for choosing Obama’s successor had to do with getting his political enemies out of the way of his legislative agenda. If Blagojevich’s account is to be believed, Fitzgerald pulled the plug prematurely not to serve the people of Illinois, but to save his own case. Had the matter been allowed to play itself out, says the former governor, it might have become increasingly obvious that what Blagojevich was doing was perfectly legal—even if unsavory to some refined sensibilities—Chicago politics. Indeed, Blagojevich tried, without success, to obtain the full, unedited eavesdrop tapes to play at his impeachment trial, claiming they would exonerate him, but was unable to do so due to Fitzgerald’s objection. At the very least, the tapes might have portrayed conduct deemed lawful, or at least acceptable under Illinois state law.

Blagojevich’s benign (even if unrefined) political explanation is lent credence by something Fitzgerald said during the December 2008 press conference. He noted that an Ethics in Government Act was pending in Illinois, scheduled to take effect January 1, 2009 that, according to Fitzgerald, “would bar certain contributions from people doing business with the state of Illinois.” And so, explained Fitzgerald, Blagojevich and his cronies “were working feverishly to get as much money from contractors, shaking them down, pay-to-play before the end of the year.” In other words, Fitzgerald appeared to be conceding that at least some of Blagojevich’s conduct was in accordance with state law as it stood at the time. Not a single reporter, however, pointed out that this “crime spree” was apparently occurring before the new ethics laws were enacted, and that the governor’s actions therefore conformed to and were permissible under state law.

Were these “crimes” the work of an arch criminal, or merely the machinations of a master political opportunist doing what Illinois law allowed? While it is true, of course, that the honest services fraud statute enables the feds to prosecute state officials for conduct allowed under state law—this is one of the statute’s problems that the Supreme Court presumably will rule upon in the upcoming cases—it is, or should be, difficult to brand a politician as on a “political corruption crime spree” if he is scrupulously adhering to the statutes and codes duly enacted by a sovereign state legislature.

Until we have a more skeptical press corps, the public discussion of whether and how federal prosecutions on the basis of vague statutes should be reined in is going to have to be conducted without the essential participation of an educated citizenry. This Fourth Estate cheering gallery is not what Thomas Jefferson envisioned.

World’s biggest coal company brings U.S. government to court in climate fraudby JOHN O'SULLIVAN on FEBRUARY 17, 201023 COMMENTSThe world’s largest private sector coal business, the Peabody Energy Company (PEC) has filed a mammoth 240-page “Petition for Reconsideration,” a full-blown legal challenge against the U.S. Environmental Protection Agency.

The petition must be answered and covers the entire body of leaked emails from ‘Climategate’ as well as those other ‘gate’ revelations including the frauds allegedly perpetrated under such sub-headings as ‘Himalayan Glaciers,’ ‘African Agricultural Production,’ ‘Amazon Rain Forests,’ ‘Melting Mountain Ice,’ ‘Netherlands Below Sea Level’ as well as those much-publicized abuses of the peer-review literature and so called ‘gray literature.’ These powerful litigants also draw attention to the proven criminal conduct by climate scientists in refusing to honor Freedom of Information law (FOIA) requests.

Peabody is, in effect, challenging the right of the current U.S. federal government to introduce cap and trade regulations by the ‘back door.’ In this article we summarize Peabody’s legal writ.

PEC has pulled out all the stops to overturn the EPA findings ‘Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act’ made on December 7, 2009. Those findings were in turn premised on the Supreme Court decision of April 2, 2007 of Massachusetts v. EPA, 549 U.S. 497 (2007), where the court ruled that greenhouse gases are air pollutants covered by the Clean Air Act.

PEC argues inter alia that the law requires that the federal agency must articulate a “rational connection between the facts found and the choice made” as per the case of Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983).

The PEC arguments are based primarily on the release of email and other information from the University of East Anglia (“UEA”) Climatic Research Unit (“CRU”) in November of last year. Their civil action lists most of the principle scientists such as Professor Phil Jones, of the UK’s Climatic Research Unit, who recently admitted there has been no ‘statistically significant’ global warming for 15 years and agreed the Medieval Warm Period may have been just as warm, if not warmer than current global temperatures.

The petition argues the EPA must reconsider its Endangerment Finding based on all the new material from Climategate that was not available during the original EPA ‘comment period’ and which is central to the outcome that EPA reached in promulgating its Endangerment Finding.

The petition further states that the EPA failed to properly exercise its judgment as required by the Clean Air Act (“CAA”) and acted in an “arbitrary and capricious” fashion by relying almost exclusively on flawed reports of the IPCC in attributing climate change to anthropogenic greenhouse gas (“GHG”) emissions and which were influenced by political rather than scientific concerns.

Among their submissions the PEC legal team attacks the “Nice Tidy Story of Unprecedented 20th Century Warmth” using emails written while climatologists were making preparations for the Third IPCC report. Among them Keith Briffa stated that:

“I know there is pressure to present a nice tidy story as regards ‘apparent unprecedented warming in a thousand years or more in the proxy data’ but in reality the situation is not quite so simple.” [CRU email 938018124.txt (Sep. 22, 1999)]

The PEC legal eagles then cite another key researcher, Ed Cook, who in a lengthy email bristles at the effort to eliminate the MWP and wrote:

“I do find the dismissal of the Medieval Warm Period as a meaningful global event to be grossly premature and probably wrong.”

[CRU email 988831541.txt (May 2, 2001)]

The PEC action criticizes the discredited IPCC reports that were not the product of a rigorous, transparent and neutral scientific process. PEC argues:

“The CRU information reveals that many of the principal scientists who authored key chapters of the IPCC scientific assessments were driven by a policy agenda that caused them to cross the line from neutral science to advocacy.”

As an example of bias, Dr. Kevin Trenberth – Senior Scientist, Head of the Climate Analysis Section at the National Center for Atmospheric Research is cited for his admission:

“I tried hard to balance the needs of the science and the IPCC, which were not always the same.”

Hide the Decline

The coal company’s lawyers argue that to hide the decline in the correlation between recent temperatures and what was showing in the proxy data, Professor Michael Mann and then Phil Jones unethically and fraudulently grafted on actual temperature data to the end of their proxy reconstructions rather than using the same proxy data as had been used throughout the reconstruction.

By this ‘trick’ they made the graphic presentations of the proxy reconstructions misleading, since the effect is to make it seem as if the proxy data shows rising 20th century warming when it doesn’t. But the real deception in the trick was in hiding what became known as the “divergence” problem.

The divergence problem is where the proxy data are contradicted by actual data, as they are for a significant period of the time when direct temperature measurements exist, the accuracy of the proxy data over the entire period of the proxy reconstruction is called into question so that the science cannot be determined to be “settled.”

In a robust attack lawyers for the PEC further assert:

“Moreover, the Information Commissioner’s Office of the United Kingdom (“U.K.”), the agency that oversees and enforces the U.K.’s freedom of information laws, after investigation, recently concluded that CRU broke those laws in refusing to respond to information requests.”

The petition concludes that:

“In sum, given the seriousness of the flaws that the CRU material and other information reveal in the development of the IPCC reports, the Agency must reexamine the Endangerment Finding. The Agency can no longer have confidence that those reports present a fair, unbiased and accurate assessment of climate science.”

Moreover, PEC is demanding that the EPA shall convene a full evidentiary hearing as a part of such reconsideration. If this element of the petition were granted it is highly probable that the weight of the new evidence now freely available since Climategate would expose the criminal and fraudulent component within the science of man-made global warming, and would likely succeed in having all the EPA’s findings on carbon dioxide invalidated.

Thereby, from accomplishing their civil task Peabody will lend further weight to the likelihood of criminal charges being brought against those individuals implicated in international fraud on the largest scale ever known.

Possibly related posts:

Two U.S. Congressmen go after EPA on reliance on UN’s climate panelSenate seeks to can EPA’s “CO2 is a pollutant” regulationSign Lord Monckton’s petition if you haven’t yetHow to destroy your reputation in three easy stepsSave yourself! Andrew Weaver looks for a way out﻿﻿Tagged as: carbon dioxide, CO2, lawsuit, Peabody

John O'Sullivan is a British writer, retired academic and legal advocate who has ten years' of experience litigating against government corruption in the U.S. federal and state courts.

MORRISTOWN, Tenn. — On a quiet street in this little town in the foothills of the Smoky Mountains lives a family of refugees who were granted asylum in the United States because they feared persecution in their home country.

The family came to the United States in 2008 from Germany, where children are required to attend an officially recognized school, be it public, private or religious.

The reason for that fear has rarely, if ever, been the basis of an asylum case. The parents, Uwe and Hannelore Romeike, want to home-school their five children, ranging in age from 2 to 12, a practice illegal in their native land, Germany.

Among European countries, Germany is nearly alone in requiring, and enforcing, attendance of children at an officially recognized school. The school can be private or religious, but it must be a school. Exceptions can be made for health reasons but not for principled objections.

But the Romeikes, who are devout Christians, said they wanted their children to learn in a different environment. Mr. Romeike (pronounced ro-MY-kuh), 38, a soft-spoken piano teacher whose young children greet strangers at the front door with a startlingly grown-up politeness, said the unruly behavior of students that was allowed by many teachers had kept his children from learning. The stories in German readers, in which devils, witches and disobedient children are often portrayed as heroes, set bad examples, he said.

“I don’t expect the school to teach about the Bible,” he said, but “part of education should be character-building.”

In Germany, he said, home-schoolers are seen as “fundamentalist religious nuts who don’t want their children to get to know what is going on in the world, who want to protect them from everything.”

“In fact,” he said, sitting on his sofa as his three older children wrote in workbooks at the dining table, “I want my children to learn the truth and to learn about what’s going on in the world so that they can deal with it.”

The reasoning behind the German law, cited by officials and in court cases, is to foster social integration, ensure exposure to people from different backgrounds and prevent what some call “parallel societies.”

“We have had this legal basis ever since the state was founded,” said Thomas Hilsenbeck, a spokesman for the Ministry for Culture, Youth and Sport in the Romeikes’ state, Baden-Württemberg. “This is broadly accepted among the general public.”

The family has been here for some time, having left Germany in 2008. But it was not until Jan. 26 that a federal immigration judge in Memphis granted them political asylum, ruling that they had a reasonable fear of persecution for their beliefs if they returned.

In a harshly worded decision, the judge, Lawrence O. Burman, denounced the German policy, calling it “utterly repellent to everything we believe as Americans,” and expressed shock at the heavy fines and other penalties the government has levied on home-schooling parents, including taking custody of their children.

Describing home-schoolers as a distinct group of people who have a “principled opposition to government policy,” he ruled that the Romeikes would face persecution both because of their religious beliefs and because they were “members of a particular social group,” two standards for granting asylum.

“It is definitely new,” said Prof. Philip G. Schrag, the director of Georgetown Law School’s asylum law program, who added that he had never heard of such a case. “What’s novel about the argument is the nature of the social group.”

But, he said, given the severity of the penalties that German home-schoolers potentially face, the judge’s decision “does not seem far outside the margin.”

Immigration and Customs Enforcement has appealed the decision, Mr. Romeike’s lawyer said Friday. A spokesman for the agency declined to comment, citing the litigation.

The Romeikes had never heard of home schooling when they set out to find an alternative to the local public school in Germany, where their two oldest children — now 11 and 12 — were having trouble with rowdy classmates. The nearby private and religious schools, Mr. Romeike said, were just as bad or even worse.

Then a woman in their church mentioned that some families, though none in the church itself, had taken their children out of school altogether.

“She knew a family, but she didn’t want to mention their name because it wasn’t legal,” Mr. Romeike said.

Months of research followed: the Romeikes read articles, sat in on court cases and talked to other home-schoolers in Germany. Eventually they decided to give it a try. Working with a curriculum from a private Christian correspondence school — one not recognized by the German government — they expected to be punished with moderate fines and otherwise left alone.

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But they soon discovered differently, he said, facing fines eventually totaling over $11,000, threats that they would lose custody of their children and, one morning, a visit by the police, who took the children to school in a police van. Those were among the fines and potential penalties that Judge Burman said rose to the level of persecution.

Mr. Romeike began looking to other countries, but his inability to speak anything other than German or English limited his options. Then, at a conference for home-schoolers in 2007, he saw Mike Donnelly, a lawyer for the Home School Legal Defense Association, a Virginia-based advocacy organization

Long before the Romeikes had begun their fight, lawyers at the association had been discussing the situation in Germany. They had tried litigating cases one by one, usually unsuccessfully.

In 2006, after the European Court of Human Rights declined to hear a petition by home-schooling parents that had failed in German courts, lawyers at the association decided to add a political line of attack to the legal one, both to raise awareness of the German policies and to find some broader solution to the issue.

At a brainstorming session, one of the lawyers, Jim Mason, came up with the idea of petitioning for political asylum.

“I don’t know German law or German courts,” Mr. Mason said, “but I do know American courts.”

Another German home-schooling family had already moved to Morristown, so the Romeikes sold many of their belongings, including their grand piano, and came here too. The court battle lasted over a year, and while the Romeikes’ lawyers said they had expected to succeed, they were surprised by the vigor of the judge’s opinion. So was the German government.

“We’re all surprised because we consider the German educational system as very excellent,” said Lutz Hermann Görgens, the German consul general in Atlanta. He defended Germany’s policy on the grounds of fostering the ability “to peacefully interact with different values and different religions.”

Mr. Romeike said he would like to return to Germany if the laws became more amenable to home schooling. There is still hope, he said, though the political landscape does not look too promising right now.

Tomorrow the Supreme Court will hear oral argument in McDonald v. Chicago — the Second Amendment case with implications far beyond gun rights. The Court is quite likely to extend the right to keep and bear arms to the states and thereby invalidate the Chicago handgun ban at issue, but the way in which it does so could revolutionize constitutional law.

In response to the oppression of freed slaves and abolitionists in southern and border states after the Civil War, the Fourteenth Amendment’s drafters sought to protect individual rights from infringement by state and local governments. The amendment’s Due Process Clause and Privileges or Immunities Clause provided overlapping but distinct protections for these rights. The Court decided in the 1873 Slaughter-House Cases, however, that the Privileges or Immunities Clause only protected Americans’ rights as national, not state, citizens. This reactionary holding eviscerated the clause, rendering it powerless to protect individual rights from state interference.

McDonald provides the Court an opportunity to overturn the Slaughter-House Cases and finally restore the Privileges or Immunities Clause to its proper role as a check against government intrusion on individual rights. Doing so would secure Americans’ natural rights, such as the freedom of contract and the right to earn an honest living, without enabling judges to invent constitutional rights to health care or welfare payments. For a more detailed discussion of McDonald’s potential implications, and how the Court should rule, see my recent op-ed here.

I will also be participating in several public events this week on McDonald, the Fourteenth Amendment, and firearm regulation. Today at 4:00 p.m., I will be speaking at a Cato policy forum, which will be broadcast live on C-SPAN and which you may watch online here. Tomorrow at 3:30 p.m., I will participate in a post-argument discussion of McDonald at the Georgetown University Law Center, which event is cosponsored by the Federalist Society and the Georgetown Journal of Law and Public Policy (where Josh Blackman and I recently published a lengthy article on the subject). And on Wednesday at noon, I will be participating in a Cato Capitol Hill briefing on McDonald and the future of gun rights at the Rayburn House Office Building, room B-340 (more information here).

Before District of Columbia v. Heller, the 1939 decision United States v. Miller was the Supreme Court’s leading decision on the Second Amendment. Miller was, to put it mildly, obliquely written. As Michael O’Shea has detailed, the opinion seems mainly concerned with whether the gun in question was a militia-type weapon, which would suggest that the decision is congruent with a well-established line of state right to arms cases (some of which were cited in Miller) that all persons had a right to arms, but that the right only encompasses militia-type arms (and not, therefore, Bowie knives or other arms associated with disreputable brawlers). However, Miller is not clearly written, and over the subsequent seven decades, there was much dispute about its meaning. The disputes were almost inevitable, in that Miller is terse and oblique, and, except for a history of the early American militia, provides almost no explication or analysis.

At the oral argument in Heller, Justice Kennedy noted that Miller “kind of ends abruptly.” In the Heller decision, the Court observed that Miller was “virtually unreasoned.” Many scholars have wondered what Justice McReynolds was trying to do by writing such an opinion.

The Heller Court pointed out that many lower courts had “overread” Miller. A recent post on the Legal History Blog provides some evidence that legal scholars may also have overread Miller, for Miller may not have been written to mean much at all, other than perfunctorily upholding the National Firearms Act against a facial challenge. The post highlights Barry Cushman’s 2003 University of Chicago Law Review article Clerking for Scrooge. Cushman’s article reviews the 2002 book The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR’s Washington.

Since high school, John Knox had been star-struck by the Supreme Court Justices, attempting to strike up correspondences with them, sending them birthday greetings, and so on. After graduating from Harvard Law School, Knox landed a clerkship with Justice James McReynolds for the 1936–37 term. McReynolds preferred to work out of his D.C. apartment, rather than in the Supreme Court’s then-new building. Knox’s role was secretarial. Knox later wrote: “I appreciated his anti-New Deal view and agreed with it, but that was the only thing I could possibly agree with him on. He was selfish to an extreme, vindictive, almost sadistically inclined at times, inconceivably narrow, temperamental, and heaven knows what. All of his employees lived in a reign of terror and were crushed under foot without any hesitation on his part.”

More relevantly for Miller, McReynolds “found great difficulty in expressing himself in writing and, sadly enough, was genuinely lazy.” In the September of the clerkship, Knox had dinner at the home of Mr. and Mrs. Edward Everett Gann. The Ganns were well-connected in Washington; Mrs. Dolly Gann was the sister of Herbert Hoover’s Vice-President, Charles Curtis (1929–33). Mr. Gann was a friend of McReynolds, and accidentally caught McReynolds in a tryst with a woman. Knox recalled Gann’s words: “I concluded finally that he is not really interested in the work of the Court any more. He’s old, evidently bored with life and would probably retire now if he could do so without letting other conservatives on the Court ‘down.’”

While McReynolds was remarkably even-tempered when President Roosevelt announced his Court-packing plan in 1937,

McReynolds appears to have been equally if not more greatly irritated by the amount of work he had to do in the spring of 1937. One of McReynolds’s defining characteristics, on Knox’s account, was sloth. . . . Nor was Knox impressed with the amount of time McReynolds put into the preparation of those opinions he actually did write. The first opinion of the term went through only two drafts, and McReynolds spent only about three and one-half hours working on it, including the hour he had spent studying the briefs of the case before he had begun his dictation. He devoted only slightly more time to his second opinion. Laboring over opinions in a “scholarly” manner was apparently not Mac’s style.

McReynolds was upset when he was assigned the dissent in an important labor law case (Anniston Manufacturing Co v Davis), which he knew would have to be long. His dawdling delayed the release of the opinion, eventually leading the other dissenters to come to his apartment to try to help him get the opinion done. McReynolds finally decided “he was going to employ the ‘paste and shears’ method, quoting verbatim from lower court opinions excerpted in the briefs rather than composing his own prose.”

Now United States v. Miller becomes easier to understand. All eight Justices (Douglas, then new to the Court, did not participate) have voted in conference to uphold the statute. The lower court opinion is a mere conclusory assertion. Miller’s attorney did not even brief or argue the case, but instead told the Court to rely on the Department of Justice brief. (We now know that the district court judge, the local U.S. Attorney, and, perhaps, the defense attorney, were colluding in order to bring the weakest possible case to the Supreme Court, in order to affirm the National Firearms Act.)

So imagine you’re Chief Justice Hughes. Given that you have to assign McReynolds a majority opinion from time to time, Miller is the perfect case. The Court is unanimous, meaning that McReynolds will not be burdened with responding to dissenting arguments. Indeed, since the case is uncontested, writing the majority opinion would be especially easy. McReynold’s product in Miller was consistent with his lazy and slapdash approach. Perhaps the other Justices, while recognizing that there was room for improvement in the opinion, decided not to press McReynolds for changes, lest McReynolds fail to get around to making any revisions, and thereby further delay the progress of the Court’s business.

All of the opinion-writing Justices in District of Columbia v. Heller took their work much more seriously than McReynolds apparently took his work in Miller, and so both the majority opinion and the two dissents directly and carefully addressed many of the important Second Amendment questions which McReynolds had conspicuously ignored.

The hearings in McDonald v. Chicago promise an unrevolutionary victory—but still an important one

Brian Doherty | March 4, 2010

Justice Antonin Scalia delivered the big laugh line of the hour at Tuesday’s Supreme Court hearings in McDonald v. Chicago. That case’s outcome will decide whether the Second Amendment rights vindicated in 2008’s D.C. v. Heller apply to states and localities. Scalia amused the crowd by asking a question that has perplexed some legal scholars and gun activists both for and against McDonald lawyer Alan Gura’s general goal of applying Second Amendment protections to all levels of American government.

To get the joke, such as it was, you first need the background about what was at stake. The Bill of Rights was originally interpreted to bind only the federal government. The framers of the 14th Amendment intended to change that, and bind the states as well in respecting Americans’ rights. This was in 1868, when recently freed slaves had their rights to work, own property, and bear arms widely abused and unprotected by state and local governments.

The history of the 14th Amendment's passage indicates that a certain part of the amendment was meant to bear the interpretive burden of applying—“incorporating” in the legal lingo—the Bill of Rights (and other restrictions on government power) to the states. That was the Privileges or Immunities Clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Since a controversial 1873 Supreme Court decision in a set of cases regarding a slaughterhouse monopoly in Louisiana, known as the Slaughterhouse Cases, the Privileges or Immunities Clause has been pretty much interpreted out of existence. The Supreme Court has instead used the vaguer and less textually sensible “due process of law" provision of the same amendment to incorporate certain rights against the states. Using that tool, the Court over the past century has already incorporated most of the Bill of Rights on the states, and some unenumerated rights as well. Gura elected to reverse this trend by arguing for incorporation of the Second Amendment on privileges or immunities grounds.

So Scalia asked Gura early in his 20 minutes of argument time on Tuesday: “Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due…process?... Why are you asking us to overrule 150, 140 years of prior law, when—when you can reach your result under substantive due—I mean, you know, unless you are bucking for a—a place on some law school faculty…?”

Scalia, reputedly a constitutional originalist, flashed some ugly colors with that laugh-provoking comment: He’d rather go with the easy precedential flow—even given a substantive due process argument that he openly admits he thinks is wrong but which he’s “acquiesced” to—then vindicate the actual intentions of the framers of a very important constitutional amendment.

Gura undoubtedly went for a daring gambit on privileges or immunities (in addition to, not at the expense of, the more traditionally successful due process argument). He did so, first, because he thought it was the correct argument based on constitutional language and history. But he, and many other legal scholars, was also excited because a revival of privileges or immunities could give courts new power to restrict states and localities from violating other rights much on the minds of the 14th Amendment’s framers.

Gura quoted some of them, from the 1866 Civil Rights Act: “To make and enforce contracts…to inherit, purchase, lease, sell, hold and convey real and personal property.” A properly grounded application of the privileges or immunities clause could help vindicate the sort of economic liberties considered out of fashion and meaningless in the higher courts since the early 20th century days of the Lochner case.

While nothing is certain until the decision (or decisions) come down later in the year, the general consensus is that Gura has at least the same five justices who revived the Second Amendment in Heller prepared to apply it to the states via the Due Process Clause. This includes Scalia, despite his expressed doubts about the validity of due process incorporation in general. Thus, Gura and the McDonald team win.

Gura cast his mission so ambitiously, though, that he may have created an unfortunate public relations problem for his team. His impending victory might be spun as a defeat. There were elements in the gun-rights community, including the National Rifle Association (NRA) (who won argument time for their advocate Paul Clement at the hearings even though McDonald was not their case), who thought Gura reached for too risky a victory for economic and other liberties when he should have kept his eye on the Second Amendment ball. The NRA’s Clement kept it simple, insisting before the court that “Under this court's existing jurisprudence, the case for incorporating the Second Amendment through the Due Process Clause is remarkably straightforward. The Second Amendment, like the First and the Fourth, protects a fundamental preexisting right that is guaranteed to the people” and thus should be incorporated against the states just as those other amendments were.

In his half hour before the justices, Chicago’s counsel James Feldman maintained that, since guns can hurt people, localities’ power to protect public safety should allow them to regulate guns as much as they want. Not wanting to re-argue Heller (unlike Justice Steven Breyer, who is still obsessed with the militia clause as presumptively dominating the purpose of the Second Amendment, contra Heller), Feldman asserted that a fundamental right to self-defense might exist, but that right was not infringed fundamentally by the banning of any specific variety of weapon, as Chicago did with handguns. Scalia wondered why Feldman seemed to think an unwritten right to self-defense existed that states should honor when he didn’t think that the written right to keep and bear arms had to be thusly honored.

The confused and random jumble of issues and concerns that flowed out in the hour at the Court shows that, while using due process may be the easiest way out for lazy justices who don’t want to think freshly or step outside a middle-of-the-road consensus, the inherent vagueness of due process makes actual legal reasoning hard—unnecessarily so, given the clearer set of historical concerns about privileges or immunities that were on the minds of the Republicans who pushed the 14th Amendment in the late 1860s.

The absurdity of legal reasoning unmoored from the historical understanding of liberty rights was apotheosized in Breyer’s reference to a "Madison Chart,” in which we decide on how much judicial respect various rights would be granted by imagining James Madison ranking their importance on a chart. Breyer avers, apparently consulting Madison’s shade, that guns for the militia would be listed high on the chart, high above guns to shoot burglars. (Jokes about the “Madison Chart” ought to be law school staples down the line.)

The various justice's particular and often eccentric concerns further muddied any discernible lines of logic at the hearing. Justice Ruth Bader Ginsburg took a poorly conceived swipe at any originalist understanding of what rights the Privileges or Immunities Clause might guarantee by stressing the claim that women didn’t have the right to own property or have occupations separate from their husbands in 1868. (Meaning they wouldn’t now either if Gura won on privileges or immunities grounds?) Both she and Justice Anthony Kennedy tried to dredge a precise answer from Gura as to exactly what rights were protected by his conception of the clause, which he wouldn’t and couldn’t do. That the Constitution was designed to protect the people’s liberties through limiting government’s power and not listing citizens’ rights is not an idea much at the front of the justices’ minds.

Justice John Paul Stevens made it clear again and again that even if incorporated against the states, a Second Amendment right could and even ought to be restricted to the narrowest version of Heller: commonly used weapons for self-defense in the home. Even Scalia made it clear that he doesn’t think state level restrictions on concealed carry would necessarily be in danger under an incorporated Second Amendment, and both Chief Justice John Roberts and Justice Kennedy made it clear that an incorporated Second Amendment does not mean a Second Amendment whose reach was as wide as the gun rights community might like. Roberts spelled it out like this: The Second Amendment “is still going to be subject to the political process if the Court determines that it is incorporated in the Due Process Clause. All the arguments [Chicago’s lawyer Feldman made] against incorporation it seems to me are arguments you should make in favor of regulation under the Second Amendment. We haven't said anything about what the content of the Second Amendment is beyond what was said in Heller.”

That’s worth remembering as we wait for the decision and its aftermath. In the usual media scrum outside the courtroom as the hearings let out, the Brady Center’s Paul Helmke was OK with losing complete bans on commonly used weapons such as Chicago’s, but insisted most (though he denied many even existed) local gun regulations are sensible public safety measures and would certainly survive future legal challenges even if Gura wins. The NRA’s Paul Clement cagily refused to say what sort of lawsuits the NRA might file challenging other state gun regulations in the event of a McDonald victory.

The future of gun rights, then, is brighter than before, though not as bright as the most tenacious defenders of self-defense rights might like. But what of the future of the Privileges or Immunities Clause? It seems as if the clause arose, goosed by Gura, from a grave that Slaughterhouse had sealed it in, only to promptly have a stake driven through its heart and its head chopped off and then shoved back in to the grave by the decidedly unfriendly approach of the justices. In the pre-hearing debate over whether privileges or immunities had a chance in McDonald, the very fact the court took up Gura’s case as opposed to a simpler due process case from the NRA also up for consideration led some to assume the Court must have wanted a chance to seriously rethink the issue. The evidence from Tuesday morning showed no sign of such interest in privileges or immunities.

However, at a Hill briefing by three privileges or immunities scholars and advocates on Wednesday—Clark Neily of the Institute for Justice, Ilya Shapiro of the Cato Institute, and Timothy Sandefur of the Pacific Legal Foundation—the mood was still defiant, not defeated.

To roughly summarize a set of arguments I heard this week in interviews and at that briefing on the future of privileges or immunities, just as Progressive-era legal doctrinal victories such as “rational review” evolved over generations to overtake the profession, a rising group of younger litigators and legal scholars are united in agreeing that Slaughterhouse was an embarrassment and must go. And scholars and advocates from different sides of the political spectrum, for different reasons, are eager to see privileges or immunities arguments become an active part of the arsenal for courts and lawyers. (Some progressives see in it a stronger chance to cram various welfare rights into the Constitution, though more libertarian fans of the clause think the clearer historical record makes the clause a weaker, not stronger, tool than due process by which to work such legal mischief.)

But no matter what the consensus is, a privileges or immunities victory will eventually have to be won in the Supreme Court, and in my read there is at best one person on the current Court who would vote for it. Justice Clarence Thomas, silent as always in this week’s hearings, has in the past expressed an interest in rethinking privileges or immunities. There’s a strong expectation on the part of some privileges or immunities fans that Thomas will write a concurring opinion uniting in the holding that the Second Amendment is incorporated, but with a separate set of privileges or immunities-based reasoning that could become a rallying flag for future arguments about the clause’s continued value. However, what sort of case might be on the horizon to bring it back before the court is unclear. What seems clear is that at least four justices have to go and be replaced by jurists friendly to the abandoned clause for it to become a meaningful part of American jurisprudence. We will have the privileges or immunities fight with us for a long time to come.

On the night of the hearings, I stepped outside the constitutional debate, and glimpsed the heart of why such high-level abstractions matter—the reason why the Supreme Court was even listening to these arguments. Cases have plaintiffs, and plaintiffs are people. At a reception sponsored by one of the case’s institutional plaintiffs, the Second Amendment Foundation, I met the lead plaintiff, Otis McDonald.

Otis McDonald will be the man—as a plaintiff—who vindicated the rights of every American who doesn’t live in a federal enclave to, at the very least, have adequate means to try to protect their lives, families, and property from violent danger. He’ll go down in the history books, to be sure, this 76-year-old man with a wife and eight kids.

He’s black, which is appropriate for both public relations and for history. It ties the arguments Gura made on McDonald's behalf to why the 14th Amendment exists: to guarantee that people of his color would have the liberties and protections white Americans of the time were supposed to have enjoyed. As Gura declared right at the start of his presentation to the Court, “In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship.”

Let me tell you something else about Otis McDonald: If you are lucky enough to meet the guy, you’re going to love him. Really. In about a half hour of conversation, both one-on-one and in a small group, the guy was devastatingly charming, in a completely unstudied way. He’s compelling and convincing and real, telling quotidian stories about being late for planes and late-night fishing; and equally so when getting historical and cosmic about the arc of his life and the role he knows he’s playing in his country’s history. One minute laughing and light, the other giving a sincerely tear-jerking account of the pride and gratitude he feels toward everyone else, especially the younger generation, advancing the scholarship and advocacy of his and his fellow Americans’ rights. After that half hour, I was on this guy’s side, just as a fellow human being. And a dream client for a civil rights case like this to boot, as the lawyers present agreed enthusiastically.

That the city of Chicago prevents this man from making the best choice available to him to protect himself and his family from the very real threats that surround him is, simply and with no constitutional history or theory required, wrong. It is a wrong that Gura's arguments on Tuesday will likely right. And while libertarian legal scholars (and some leftist ones) may feel dejected that Gura failed to win the Court over to the wisdom of overturning Slaughterhouse, McDonald, his fellow plaintiffs, and the rest of Chicago will because of his efforts be able to exercise a core human right unmolested. That is great news, news whose importance should not be clouded by the specifics of how it was won.

Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).

Citing cases dating back as far as 1928, a judge has ruled that a young girl accused of running down an elderly woman while racing a bicycle with training wheels on a Manhattan sidewalk two years ago can be sued for negligence.

The ruling by the judge, Justice Paul Wooten of State Supreme Court in Manhattan, did not find that the girl was liable, but merely permitted a lawsuit brought against her, another boy and their parents to move forward.

The suit that Justice Wooten allowed to proceed claims that in April 2009, Juliet Breitman and Jacob Kohn, who were both 4, were racing their bicycles, under the supervision of their mothers, Dana Breitman and Rachel Kohn, on the sidewalk of a building on East 52nd Street. At some point in the race, they struck an 87-year-old woman named Claire Menagh, who was walking in front of the building and, according to the complaint, was “seriously and severely injured,” suffering a hip fracture that required surgery. She died three months later of unrelated causes.

Her estate sued the children and their mothers, claiming they had acted negligently during the accident. In a response, Juliet’s lawyer, James P. Tyrie, argued that the girl was not “engaged in an adult activity” at the time of the accident — “She was riding her bicycle with training wheels under the supervision of her mother” — and was too young to be held liable for negligence.

In legal papers, Mr. Tyrie added, “Courts have held that an infant under the age of 4 is conclusively presumed to be incapable of negligence.” (Rachel and Jacob Kohn did not seek to dismiss the case against them.)

But Justice Wooten declined to stretch that rule to children over 4. On Oct. 1, he rejected a motion to dismiss the case because of Juliet’s age, noting that she was three months shy of turning 5 when Ms. Menagh was struck, and thus old enough to be sued.

Mr. Tyrie “correctly notes that infants under the age of 4 are conclusively presumed incapable of negligence,” Justice Wooten wrote in his decision, referring to the 1928 case. “Juliet Breitman, however, was over the age of 4 at the time of the subject incident. For infants above the age of 4, there is no bright-line rule.”

The New York Law Journal reported the decision on Thursday.

Mr. Tyrie had also argued that Juliet should not be held liable because her mother was present; Justice Wooten disagreed.

“A parent’s presence alone does not give a reasonable child carte blanche to engage in risky behavior such as running across a street,” the judge wrote. He added that any “reasonably prudent child,” who presumably has been told to look both ways before crossing a street, should know that dashing out without looking is dangerous, with or without a parent there. The crucial factor is whether the parent encourages the risky behavior; if so, the child should not be held accountable.

In Ms. Menagh’s case, however, there was nothing to indicate that Juliet’s mother “had any active role in the alleged incident, only that the mother was ‘supervising,’ a term that is too vague to hold meaning here,” he wrote. He concluded that there was no evidence of Juliet’s “lack of intelligence or maturity” or anything to “indicate that another child of similar age and capacity under the circumstances could not have reasonably appreciated the danger of riding a bicycle into an elderly woman.”

An article in some editions on Friday about a lawsuit that claims an elderly woman was severely injured by two 4-year-olds racing their bicycles on a Manhattan sidewalk misstated the timing of the woman’s death. The woman, Claire Menagh, died of unrelated causes three months after she was struck, not three weeks.

Even though it is POTH, this editorial sounds reasonable to me.================================================

Unexpected wireless charges are a chronic affliction of life on the grid. The industry triggers more complaints from consumers than any other. AT&T Mobility, by consumer rankings, is the worst. Its performance in a case the Supreme Court heard recently has done nothing to improve that reputation.

This is the latest in the arbitration war — a battle over whether the United States will increasingly have a privatized system of justice that bars people from enforcing rights in court and, if so, what will be considered fair in that system. It would be grossly unfair for the court to let the corporation get away with what it wants to in AT&T Mobility v. Concepcion — a case that involves a small amount of money and a huge principle.

When Vincent and Liza Concepcion signed up for AT&T cellphone service, they received two new phones in exchange for making a two-year agreement. To their consternation, AT&T charged them $30.22 in sales tax for the phones. The Concepcions sued the company for fraud in Federal District Court and their case and another were consolidated as a class action.

Because of an arbitration clause in its customer agreement, AT&T insisted that the Concepcions had to submit their claim to individual arbitration. The federal district judge said no. The judge ruled that the agreement is “unconscionable” under California law — imposed by the company harshly, coerced and not consented to. The United States Court of Appeals for the Ninth Circuit forcefully upheld the decision.

The issue before the Supreme Court is the Federal Arbitration Act, which recognizes some kinds of arbitration agreements as enforceable obligations — and whether that pre-empts the California law. The court must decide if the state law applies only to arbitration agreements, and not contracts generally, or if it hinders Congressional desire to treat arbitration agreements and other contracts similarly and promote speedy resolution of claims.

California says that its law does neither and the appellate court agrees. AT&T contends that California law isn’t what the state says it is. AT&T is asking the Supreme Court to intrude on California’s sovereignty and second-guess interpretation of state law by state courts.

During the recent argument in the Supreme Court, Justice Elena Kagan asked AT&T’s lawyer, “Now, who are we to say that the state is wrong about that?” Justice Antonin Scalia asked a similar question: “Are we going to tell the State of California what it has to consider unconscionable?” When the lawyer answered yes, Justice Stephen Breyer said rhetorically: “Why, why, why?”

The lawyer’s best shot at victory was to portray California law as extreme. Unfortunately for him, courts applying law of at least 19 other states have reached the same conclusion as California, including five federal appeals courts. Under California law, an agreement isn’t enforceable if it requires a customer to submit to individual arbitration that can’t be effective. It can’t be effective, as in this case, if the payoff is so paltry that it takes away incentive to challenge fraud or deception. AT&T’s arbitration agreement supposedly assures customers “a minimum recovery of $7,500, plus double attorneys’ fees, if the arbitrator awards them more than” an offer from AT&T. Translated: AT&T can pay the claim’s value — here, $30.22 — before an arbitrator is picked.

The Ninth Circuit said this “artifice” has “the practical effect of rendering” AT&T “immune from individual claims.” AT&T’s arbitration clause is unconscionable. The Supreme Court should say so.

"Under the theory of new judicial federalism, a state court may interpret its state constitution in the same way that federal courts have interpreted an analogous federal provision. On the other hand, a state court may, without violating the U.S. Constitution, interpret a state constitution as granting an individual more protection than the federal rights."http://www.law.csuohio.edu/lawlibrary/resources/lawpubs/ohioconlaw/documents/Renquist.pdf

The idea is that if the state courts rely on the state constitution, rather than the U.S. Constitution, the SC would take a hands off approach to reviewing the decision. It was new in 1985, in Michigan v. Long (the Court's opinion for which SDO authored), because of the prior courts decisions of the 1950's-1970's.

New rights and more rights, that sounds good. A state court finding a new right of free health care would be an example?

How about changing marriage from a man and a woman becoming husband and wife into an any-gender experience - no matter what the people of the state say - and no matter what the U.S. Supreme Court would have said: